CAAF decided United States v. Mott, No. 12-0604/NA, 72 M.J. 319 (CAAFlog case page) (link to slip op.), on July 8, 2013. The case presented two significant but distinct issues. The first asked CAAF to determine the appropriate standard for an insanity defense under Article 50a, and CAAF finds that an objective standard of wrongfulness is appropriate under the Code, affirming the trial judge’s instruction to the members and the decision of the NMCCA. The second issue addresses the admission of Appellant’s confession to NCIS, and CAAF finds that the trial military judge abused his discretion when he admitted the confession because he failed to conduct a proper analysis, and that this error was not harmless. CAAF sets aside the findings and authorizes a rehearing in this case where Appellant has already been twice-convicted of attempted premeditated murder.

Chief Judge Baker writes for a unanimous court.

This case arose out of a stabbing that occurred aboard USS CAPE ST GEORGE in 2007. Appellant, who was suffering from paranoid delusions and was later diagnosed with schizophrenia, believed that the victim (a fellow sailor he had never seen before) participated in a gang rape of Appellant some four years earlier. Appellant was tried and convicted in 2008, contrary to his pleas, by a military judge sitting as a general court-martial, of attempted premeditated murder. The approved sentence was confinement for 12 years, total forfeitures, reduction to E-1, and a dishonorable discharge. But the NMCCA set aside the findings in 2009 due to a Government discovery violation (Mott I).

Appellant was retried in 2010, this time before a general court-martial composed of officer members. He was again convicted, contrary to his pleas, of attempted premeditated murder, and was sentenced to confinement for nine years, reduction to E-1, and a dishonorable discharge. The NMCCA affirmed the findings and sentence in April 2012 (Mott II)

During the second trial, Appellant unsuccessfully presented the affirmative defense of lack of mental responsibility. In response to a question from a member regarding the legal definition of wrongfulness, the military judge instructed that:

When the law speaks of wrongfulness[,] the law does not mean to permit the individual to be his own judge of what is right or wrong. What is right or wrong is judged by societal standards. The standard focuses on the accused’s ability to appreciate that his conduct would be contrary to public or societal standards.

Slip op. at 7. But at trial, before the CCA, and at CAAF, Appellant argued that the definition should “incorporate[] the subjective beliefs of the accused in determining wrongfulness.” Slip op. at 8. Appellant also unsuccessfully moved to suppress his confession at trial.

Chief Judge Baker’s opinion begins by noting that the insanity defense in Article 50a is “substantively identical” to the federal insanity defense created by the Insanity Defense Reform Act of 1984 (IDRA). The IDRA broadened the common law test developed in the English law M’Naghten’s Case, 8 Eng. Rep. 718 (1843), and requires that a defendant suffering from a severe mental disease or defect be unable to appreciate (rather than merely know) the nature and quality or the wrongfulness of his acts. But “wrongfulness” is not defined in the UCMJ, and Appellant argued that it should be “determined by an accused’s sense of right and wrong.” Slip op. at 13. CAAF rejects this argument, and Chief Judge Baker notes that M’Naghten’s Case and the decisions of many of our federal courts have settled on an objective test that refers to societal or public standards of morality:

Society formally expresses its determinations of “right and wrong” and “public morality” through law. Thus, wrongfulness is based on the law, even if it does not require the accused to have actual knowledge of the law. While “appreciate” is subjective, “wrongfulness” must be objective. Thus, “appreciating wrongfulness” is the accused’s ability to understand and grasp that his conduct violates society’s essential rules, and is supported by an accused’s understanding that his conduct violated the law, and is contradicted by evidence that — if the facts of the accused’s delusions were true — then his conduct would not violate the law.

Slip op. at 15-16 (citations omitted). Thus, CAAF concludes that the panel was properly instructed by the trial judge.

But CAAF finds significant fault with a different action of the trial judge: “Without deciding whether Appellant knowingly and intelligently waived his right to counsel, we hold that the military judge abused his discretion by failing to analyze as a matter of law whether Appellant could and did knowingly and intelligently waive his rights.” Slip op. at 17.

It’s going to be a few days before I’ll have a chance to analyze them.

The court also docketed a certificate of review in another (see Arriaga and Carter) Air Force case involving prejudice and the plain error test:

United States v. Lindgren, No. 13-5009/AF

Issues:
I. Whether Appellee satisfied his burden to demonstrate that the defective specification under Article 134, UCMJ, materially prejudiced his substantial rights when he was provided actual notice of the terminal element through an Article 32 report received prior to trial.
II. Whether the Air Force Court of Criminal Appeals applied an erroneous standard of law when evaluating whether the defective specification under Article 134, UCMJ, materially prejudiced Appellee’s substantial rights by failing to consider whether the evidence on the missing element was “overwhelming and essentially uncontroverted” and by finding notice of the missing element was not extant in the record.
III. Whether this honorable court should apply the fourth prong of the plain error analysis as articulated by the United States Supreme Court in United States v. Olano, 507 U.S. 725 (1993), when assessing whether the defective specification under Article 134, UCMJ, materially prejudiced appellee’s substantial rights in this case.

It takes longer for me to get audio of a hearing that I participated in, from the recording device in the courtroom that is located in the same building as my office and the office of the person who pulls the audio… CAAF’s handling of argument audio might be the only system that moves faster the closer to Washington D.C. it gets.

CAAF will hear oral argument in the case of United States v. Mott, No. 12-0604/NA, on Wednesday, January 23, 2013. The court granted review of the following issues:

I. A lack of mental responsibility defense exists when a mentally diseased accused cannot appreciate the wrongfulness of his conduct. Here, experts testified that appellant’s paranoid schizophrenia and severe delusions created his subjective belief that stabbing the victim was justified. But the military judge and NMCCA adopted an objective standard for “wrongfulness.” What is the appropriate standard in determining whether an accused can appreciate the wrongfulness of his conduct?

II. Under the Fifth Amendment, an accused’s statement to investigators is admissible only if it was obtained with a voluntary, knowing, and intelligent waiver where the accused understands his rights and the consequences of waiving them. Here, expert witnesses testified that appellant could not understand his rights or the consequences of waiving them because of his severe mental disease. Did the military judge err by admitting the statement?

This case arose out of a stabbing that occurred aboard USS Cape St George in 2007. The Appellant believed that the victim (a fellow sailor he had never seen before) had participated in a gang rape of the Appellant in 2003. The Appellant was suffering from paranoid delusions at the time of the stabbing, and he was later diagnosed as a paranoid schizophrenic (and was initially declared incompetent to stand trial, followed by eight months of treatment at the Prison Mental Health Facility at Butner, North Carolina). He was eventually tried and convicted, contrary to his pleas, by a military judge sitting as a general court-martial, of attempted premeditated murder, in violation of Article 80, UCMJ. The approved sentence was confinement for 12 years, total forfeitures, reduction to E-1, and a dishonorable discharge.

However, the findings and sentence were set-aside by the NMCCA in 2009 due to a Behenna-esqe discovery violation. Specifically, the Government expert “verbally informed the trial counsel that he agreed with the defense expert that the appellant suffered from a severe mental disease and that said disease caused the appellant not to understand the wrongfulness of his actions at the time of the charged misconduct. . . . We find, therefore, that the trial counsel’s failure to disclose the expert medical opinion of their expert, Dr. [H], was error.” United States v. Mott, No. 200900115, slip op. at 5 (N-M.Ct.Crim.App. Nov 24, 2009) (unpublished) (Mott I).

The Appellant was retried in 2010, this time before a general court-martial composed of officer members. He was again convicted, contrary to his pleas, of attempted premeditated murder, in violation of Article 80, UCMJ. He was sentenced to confinement for nine years, reduction to E-1, and a dishonorable discharge. The NMCCA affirmed the findings and sentence in April, 2012.

During the retrial, the Appellant unsuccessfully presented the affirmative defense of lack of mental responsibility. At the NMCCA, he argued that his conviction was legally and factually insufficient because he was unable to appreciate the wrongfulness of his actions. The CCA began its analysis by “not[ing] that the Court of Appeals for the Armed Forces has not defined the phrase ‘appreciate the wrongfulness’ in its existing case law.” United States v. Mott, No. 200900115, slip op. at 10 (N-M.Ct.Crim.App. Apr 30, 2012) (unpublished) (Mott II). It then considered the three possible definitions recognized in federal caselaw:

(1) legal wrongfulness, as in “contrary to law”;
(2) moral wrongfulness, as in “contrary to public morality,” determined objectively by reference to society’s condemnation of the act as morally wrong; or
(3) moral wrongfulness, as in “contrary to personal morality,” determined subjectively by reference to the defendant’s belief that his action was morally justified

Mott II, slip op. at 10 (quoting United States v. Ewing, 494 F.3d 607, 616 (7th Cir. 2007)). The Appellant asked the court to adopt the third definition (subjective belief of wrongfulness), but the court “agree[d] with the Seventh Circuit’s well-reasoned analysis in Ewing and . . . conclude[d] that the phrase ‘appreciate the wrongfulness’ must employ an objective societal standard of moral wrongfulness.” Mott II, slip op. at 10. This action (and the trial military judge’s similar adoption of the objective test in his instructions to the members) is the subject of the first granted issue before CAAF.

Additionally, in a pretrial motion, the Appellant sought to suppress a confession he made to NCIS shortly after the stabbing, on the basis that his waiver of his right against self-incrimination was not knowing and intelligent based on the opinion of a “a forensic psychiatrist, who opined that the appellant’s diagnosed paranoid schizophrenia prevented him from understanding the consequences of the waiver.” Mott II, slip op. at 3. The trial judge denied the motion, and the NMCCA affirmed based on the totality of the circumstances. This action is the subject of the second granted issue.

Here’s a very interesting report by the Virginian-Pilot‘s Kate Wiltrout about the second attempted premeditated murder court-martial of Seaman Richard Mott. One of the TCs in the case was our very own CDR Jason Grover, the Super Muppet of Advocacy. Mott’s original conviction was set aside by this unpublished NMCCA opinion due to a discovery violation.

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